When it comes to enforcing state regulations, Maryland’s Office of the Attorney General is where matters turn serious. It’s one thing for a state regulatory agency to issue a ticket or warning; it’s quite another to take a violator to court, which is where the dozens of lawyers working for Attorney General Brian E. Frosh come in. From environmental crimes to Medicaid fraud, Mr. Frosh and his team stand ready to investigate and prosecute scofflaws, big and small, wherever they might be found, from Oakland to Ocean City. There’s been one major hitch in the system in recent years, however.
That would be a lack of referrals.
According to records provided from the OAG, the number of complaints from two of the biggest sources of enforcement referrals, the Department of the Environment and the Department of Health, have fallen precipitously since Gov. Larry Hogan’s first year in office in 2015. In Fiscal 2015, for example, the attorney general’s environmental crimes unit opened 50 investigations. In Fiscal 2022 which just ended on June 30, the number of referrals was essentially cut in half at 26. In the area of health, the drop was even more dramatic. Instead of the 36 referrals of Fiscal 2016, the attorney general was down to four in Fiscal 2022.
What does this mean? Either polluters are no longer polluting or fraudsters are no longer defrauding or Maryland has dramatically dialed down its regulatory enforcement efforts. There are two potential explanations for this. First is a failure to fill open state jobs, a problem worsened by the COVID-19 pandemic. According to the state Department of Legislative Services, some state agencies have vacancy rates as high as 13.8%, so there are clearly few folks around to enforce the rules. But the other potential explanation is more worrisome (and more likely), and that is a deliberate strategy to go soft on individuals and businesses that fail to follow the law. Instead of viewing their role as enforcers, state regulators have been counseled to see themselves as partners who are there to help meet compliance standards and not to punish violators.
Attorney General Frosh, a Democrat who is not running for reelection this year, says he thinks that mindset is exactly the issue. He sees it as shortsighted and is upset by it. “I don’t think crime or violations of the law have slowed down,” he recently told The Baltimore Sun editorial board. “I think we’re not seeing the kind of vigilance we need to see in making these referrals or asking us to bring these actions.”
Asked about the low referral rate, Michael Ricci, Mr. Hogan’s communications director, instead pointed to the attorney general’s low conviction rate in Medicaid fraud investigations, observing in his emailed response that during the 2020 federal fiscal year, the AG had 32 open cases (25 of which were at least two years old) that resulted in three convictions. “The next Attorney General would do well to ensure the state’s [Medicaid Fraud Control Unit] has the support and investigative resources to follow through on referrals,” Mr. Ricci writes. He did not deny that overall referrals have dropped. Further, as a spokeswoman for the AG notes, the office produced 17 civil settlements of Medicaid fraud claims in 2020 recovering more than $35 million.
That a Republican governor is perhaps more reluctant to take businesses to court than the Democrats who served in that office before him is probably not a shock. But it is a contrast to how the Hogan administration has in more recent weeks trumpeted the state’s efforts to clean up Baltimore’s failing Back River and Patapsco wastewater treatment plants. The governor has even suggested that there be a criminal investigation into grading practices in Baltimore City Public Schools, although how this issue, which was reviewed by a state inspector general who oversees education, could translate into anything approaching criminal conduct is not clear. But the suggestion did, at least, maintain the Hogan administration’s record of publicly treating Baltimore as a pariah.
Whatever Mr. Hogan’s inconsistent approach to enforcement, it would be wise for voters to carefully scrutinize those running to succeed him next year. It is one thing to be “business friendly,” as the current administration has long touted, but it’s quite another to be run roughshod by those who profit from lawbreaking. As Mr. Hogan so often likes to point out, you need to arrest and prosecute criminals who will be emboldened if they see a lack of adverse consequences to their actions. That strategy should apply not just to gun violence in Baltimore but to white collar crime anywhere in Maryland.
Baltimore Sun editorial writers offer opinions and analysis on news and issues relevant to readers. They operate separately from the newsroom.